1857.] FISHER'S digested IndeX OF REPORTED DECISIONS. 325

A painful feeling was created in the Parliament House by the remarkably sudden death of one of the oldest and most respected members of the bar, Mr Robert Thomson, Sheriff of Caithness, and author of the well-known treatise on Bills of Exchange. At present we are unable to do that justice to his memory which we hope in next number to attempt; but, in the meantime, we cannot forbear the remark, that if he had certain peculiarities which marked him as a character" with some, there were few men of so extensive reading, and with a disposition in all respects so thoroughly amiable. The county, by the recent statute, merges in the Sheriffdom of Sutherland; so a new appointment is unnecessary. The only other changes, during the month, have been the appointment of Mr Charles Robertson, a gentleman of twenty-three years' experience, as Sheriff-Substitute at Inverness, in room of Mr Colquhoun, resigned; and the removal to Forfar, as successor to the late Mr Charles Dickson, of Mr G. R. Ogilvy, an accomplished man and a good lawyer. In making appointments to a situation already so important, and now yearly growing in responsibility, we hope that, while no preference is shown to one branch of the profession over another, no effect will be given to those private and personal influences, which at once ignore true merit, and, at the same time, conceal the deficiencies of incompetency. In England, the continued indisposition of Mr S. Wortley has rendered a new appointment to the office of Solicitor-General necessary; and, accordingly, Mr Keating has been preferred to the vacancy.

New Books.

A Digested Index of the Reported Decisions in the House of Lords, Privy Council, and the Courts of Equity, Common Law, Admiralty, and Ecclesiastical; with References to all the Statutes passed, and the Rules and Orders of Court promulgated, during the Year 1856. By R. A. FISHER, Esq., of the Middle Temple, Barrister-at-Law. London: H. Sweet, 3, Chancery Lane.

WE wish some one would do for the law of Scotland what Mr Harrison and his continuators have done for the law of England. Till the law is codified, such a book is indispensable to its practice; but it shows the poverty of our literary resources, that the want of a work on the plan of Mr Harrison still remains a defect in our professional literature. Digests we certainly have; but what are they? Their arrangement is bad, and their execution is worse. While, in the former respect, they display a singular want of attention to both analysis and method, the defect is aggravated by the confused jumble of law and fact which the cases display as stated.

so.

Every one knows the difficulty there is in finding what is wanted in a work constructed on such a system. After repeated references to title after title, the unfortunate victim may, peradventure, stumble on something like similarity in the facts, if not in the law; or a refreshing ray of hope may appear through the haze of some such vague generalization as, "in the circumstances held," so and Sometimes the research, after being continued with the most patient perseverance, is abandoned in hopeless despair; and a day or two after, when the paper has been drawn, or the argument over, or the case is at avizandum, or, it may be, judgment has been given, you accidentally fall in with the object of your former fruitless inquiry. And this, too, although we have only one court, instead of several, and that court disposing of nothing like 1600 cases annually, as the different English judicatures appear to have determined in 1856. A digest, to be worthy of the name, should be something else than a mere collection of inartificially drawn rubrics, as they are to be found in a report. In using it, a person looks for doctrine and principles, and not merely a similarity in the circumstances to the species facti of the case he has in hand. To express the substance of a decision, therefore, there ought to be a careful separation of the law from the facts to which it was applied. In one paragraph, the ratio ought to be stated as a proposition; in another, the facts should follow as an illustration of its application. A work on such a plan, and with due attention to arrangement, would be an incalculable professional gain. We hope to see this want soon supplied; but we fear that, while there are many of our younger brethren with both the time and the ability necessary, there are few possessed of the courage required for an undertaking of so laborious a character.

If the attempt is ever to be made, we hope the plan followed will be taken from the digest of Mr Harrison. Commencing with the time of Lord Mansfield, in 1756, the cases in the first four volumes are brought down to 1843; and two additional volumes complete the work to the year 1855. Its value is so undisputed, or rather its necessity so indispensable, that the continuation, now carried on by Mr Fisher, is published annually. In a closely printed volume, of about 270 double-columned pages, we have before us the issue for 1856. We think, in the present editor's hands, the character of the work is not likely to suffer. While the old arrangement continues to be followed, we notice in its execution the same distinctive features to which we have above adverted. The two great essentials of such a work are, 1st, accuracy; and, 2d, that it should embrace all the cases of the year. Enormous as must have been the labour in overtaking so many decisions pronounced in so many courts, Mr Fisher seems to have been successful in doing So. He has thus supplied the profession in England with a work, that we fully believe makes the practice of the law there, notwithstanding of the multitude and variety of authority to be found on

every point, a much simpler process than it is in Scotland. An excellent feature is, that all the statutes of the year are given, each under the title of the subject which they particularly affect. Thus the work offers all the advantages of a codification of both the statutory and common law of the kingdom, in so far as developed by the exigencies of society during the year. We notice with satisfaction that the Editor gives all the Scotch appeals, a circumstance that will make the digest still more valuable for the purposes of consultation in Scotland, where English authority is now so invariably quoted, and so universally sought after.

Correspondence.

BUSINESS OF THE COURT OF SESSION.

To the Editor of the Journal of Jurisprudence.

SIR,-I address you as the organ, not of a class, but of the great profession of the law in all its branches. I am desirous of calling attention to the demand uttered by every legal body in Scotland, except the bar, that the judges of the Court of Session should now be required to perform their appointed duty. The bar has in this instance, I regret to say, sacrificed its patriotism to its selfish interests.

There are men alive who can recollect the Cranstoun-Rutherford dispute, and the circumstances out of which it arose. Till that celebrated quarrel, the judges of the Court of Session had the not illiberal allowance of L.2000 a year, which could, with no exertions, be increased. It required the shelving of Lord-Advocate Murray, and the installation in his room of the abler LordAdvocate Rutherford, before an increase to L.3000 could be obtained.

The matter was arranged with some difficulty, and in the form of a distinct and specific contract. The salaries were to be increased, upon the condition that, should the business before any of the Courts run into arrear, the sittings of that Court should be prolonged, either by an order of the Court itself or by an order of the Privy Council. It was unusual to insert the latter alternative in any statute having for its object the mere regulation of the business of a court of justice. But the result has shown that the legislature of the day estimated the Scotch judges correctly, by retaining to the government the power of applying the spur of authority to the side of their indolent inaction.

Upon the faith of the power being exercised when the occasion required it, the judges' salaries were increased by the addition of L.1000 a year each. Upon no other terms could this increase have been obtained from the economists of the day. Either the condition was meant to be kept, or it was not; if it was, then the occasion has come for its exercise; if it was not, then the transaction was a fraud.

The return obtained by our respected member, Mr Black, upon which he and the other Scotch members intend to base their opposition to the Office-ofJudge-made-easy-Bill of the Lord-Advocate, discloses some startling facts; and I shall therefore copy it entire.

"COURT OF SESSION.-It appears from a return presented to the House of Commons, that the number of extra sittings of the Court of Session since 1st January 1840 to 1st January 1857, in terms of 2 and 3 Vict., c. 36, has been six, and all subsequent to 1st January 1853. Of these six, two were extra sittings of the whole Court in 1855; the first occupied in hearing one cause of great length; the second, in hearing three causes. The rest of the sittings were held by the 1st Division only; and at each of them, 53, 19, 7, and 6 causes were respectively disposed of. There have been no extra sittings of the Lord Ordinary under § 10 of the Act; but under § 9 they have all sat three weeks longer in each year than they did formerly. The number of causes standing on the roll of each Division of the Court, and ready for hearing, on the 1st January in each of the last ten years, was as follows:

It thus appears that for ten years the Second Division has been simply marking time. It might be abolished to-morrow without loss to the country; and really the time has come when the interests and the feelings of individual public officers must yield to the larger interests of the general public, whose servants they are. According to your own statement in the last number of your Journal, the First Division was no less than three years in arrear of business. Is this not discreditable, and calculated to excite most justly the public indignation? Out of 313 working days in the year, the whole number of working days given by the First Division of the Court of Session is just 113, a little more than a third. When, Sir, I turn my eye to the south, I find a statement like this in the Times of 3d June :-"BUSINESS of the COURT.At the sitting of the Court this morning, Lord Campbell said, that in consequence of the great influx of business into this Court, there was reason to apprehend there would be considerable arrears at the end of term; it would therefore be necessary to hold sittings in banco after term. The Court would accordingly sit in banco on Saturday the 13th, Monday the 15th, Tuesday the 16th, and Wednesday the 17th of June; and also on Tuesday the 23d, Wednesday the 24th, Thursday the 25th, and Friday the 26th of June. On Saturday the 4th of July the Court will also sit in banco, to give judgment in cases previously argued. In the first instance, the Court will take the country new trials, and afterwards the cases in the special paper. The Court will not sit in banco at Westminster after it has commenced sitting at nisi prius at Guildhall on the 27th of June."

Look on this picture, and on that! Here is an old man, seventy-eight years of age, who does not grumble at the amount of labour laid upon him, or grudge to the public every additional hour consumed by extra sittings. All honour to him for his devotion; and this all the more, that the extra service is not bought and paid for. I venture to say that the sittings of the Queen's Bench, including the trials at nisi prius and on Circuit, involve three times the amount of labour of the busiest session of the First Division.

What, then, is the course demanded by the country at the hands of Government? The First Division refuse to perform their duty, and get rid of their arrears; and the roll is crowded with the causes of unfortunate persons,

who are waiting with the weary expectation of hope deferred. How many ruined fortunes and broken hearts are caused by this judicial delay! Government must at once come to the aid of a people that have borne this burden for sixteen years, with such unexampled patience. It is for them now, by an order in council, to direct that the First Division shall extend its sittings during the months of August and September, so as to clear off their heavy arrear. The objection to the Second Division is entirely personal. It cannot be obviated except by the abolition of the Court, or its entire reconstruction.I am, etc., CIVIS.

Digest of Decisions.

COURT OF SESSION.

FIRST DIVISION.

HAMILTON V. BRUCE'S TRUSTEES.-May 21.

Diligence-Oppressive use of.

Mrs Bruce had right by her marriage-contract to an annuity of L.500, which was made a real burden upon her husband's estate of Broomhill. Hamilton married the only daughter of Mr Bruce, and in virtue of his marriage-contract, has since acquired right to Broomhill, under burden of the annuity, or a proportional part thereof. Mr Bruce, at his death, left ample means other than Broomhill, which were declared liable, in the first instance, for the annuity. His trustees now raised an action against Hamilton for alleged arrears of annuity, and also to relieve them of future payments; and on the dependence, used inhibition and arrestments. The amount sued for was L.4500. Broomhill was admittedly of the value of L.15,000, subject to a preferable debt of L.3000. Hamilton presented a petition for recall, on the ground that the diligence was nimious and oppressive. The Court, on the ground that there was ample security for the claim, granted the prayer of the petition.

LAING v. ADAMSON.-May 22.

Parochial Relief Onus probandi of proving a woman able-bodied.

In the course of a discussion on an application for parochial relief by a woman having one child to support, the Lord President announced that, in deciding such an application, the whole circumstances of the case must be considered, and not merely the abstract question whether she was personally in good health, and, in the ordinary meaning of the term, " able-bodied;" and that the Court did not intend, in the case of Mackay . Baillie, 20th July 1853, to fix any abstract rule that, in such applications, the onus probandi was thrown on the parish applied to. It depended on circumstances on whom the burden lay. Mr and Mrs James v. Kerr.—May 27. Process-Consignation of a Fund in Medio.

In a multiplepoinding raised by Kerr, as surviving trustee of the late W. Colville, Mr and Mrs James claimed, and were found entitled by the Lord Ordinary to the fund in medio, L. 10,000. The other claimants were annuitants under Colville's settlement-some of them resident abroad; and the Lord Ordinary found that it was the duty of the surviving trustee to secure their interest before paying over the fund. Mr and Mrs James reclaimed; and the note being undisposed of, they now moved for consignation of L.7500 of the fund at present in bank, on deposit receipts in Kerr's name. The annuitants objected, on the ground that they had a judgment in their favour. Kerr also objected, in re

VOL. I.-NO. VI. JUNE 1857.

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